Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.united States of America, Plaintiff-appellee, v. John Dominic Concha, Defendant-appellant, 932 F.2d 975 (10th Cir. 1991)

John Concha pled guilty to one count charging violations of 18 U.S.C. §§ 1153, 1112(a) (1988) (voluntary manslaughter), and one count charging violations of 18 U.S.C. §§ 1153, 1113(a) (1988) (attempt to commit murder). Concha was sentenced to 108 months on each count, the sentences to run concurrently. On appeal, Concha contends that the district court erred in denying his motion to depart downward. We dismiss for lack of jurisdiction.

This court has held generally that "when a sentence is within the guideline range and is not imposed in violation of law, or as a result of an incorrect application of the guidelines, then the district court's refusal to exercise its discretion to depart downward from the guideline range is not appealable." United States v. Davis, 900 F.2d 1524, 1530 (10th Cir.), cert. denied, 111 S. Ct. 1555 (1990) (footnotes omitted). However, we left open the question whether a discretionary refusal to depart downward is ever reviewable. See id. at 1530 n. 6. In United States v. Garcia, 919 F.2d 1478, 1480-81 (10th Cir. 1990), we discussed and agreed with the Second Circuit's analysis of the issue in United States v. Colon, 884 F.2d 1550 (2d Cir.), cert denied, 110 S. Ct. 553 (1989), and indicated that "very narrow exceptions [exist] to the general rule that sentences falling within the Guidelines are not appealable." Id. at 1481. Because we have jurisdiction to determine our own jurisdiction, we may consider whether Concha has brought himself within these exceptions.

Concha alleges that the refusal to depart here is reviewable because the district court did not properly weigh essentially undisputed facts concerning the defendant, the nature of the crime, and the deceased victim's contribution to the event. This assertion simply does not meet the requirements of the narrow exceptions recognized in Garcia. See id. at 1481-82. Accordingly, we dismiss for lack of jurisdiction.

DISMISSED.